İNSAN HAKLARI

The CoE has a much-praised mechanism that obliges States to secure fundamental rights of not only their own citizens but also of everyone withi their jurisdiction. All of its members are parties the ECHR and most of its Protocols, which are put into force to protect human rights, democracy and the rule of law. The mechanism is maintained by the ECrtHR, which has delivered more than 10.000 judgments since it was first established in 1959.

The Committee (Committee of Ministers) has a crucial role in monitoring the practices of States regarding the protected rights and values. In that vein, it supervises the execution of the judgments of the ECrtHR. It has the responsibility and duty to “consider the action required to further the aim of the CoE, including the conclusion of conventions or agreements and the adoption by Governments of a common policy with regard to particular matters.” (Article 15). Finally, it is the body that decides whether to accept (“invite”) a new member to the CoE.

This “governmental” body sustains a close dialogue with the Parliamentary Assembly (PACE), which is generally seen as the “public face” and even the “motor” of the Council. The Assembly consists of 324 members of parliament from the 47 member States representing some 800 million people. Unlike the Parliament of the EU, these members are not directly elected by the peoples of the members but are rather delegations assigned from among the national parliamentarians of member States. However, the delegations must reflect the political spectrum of their respective national parliaments. Albeit being a debate forum that keeps an eye on current issues and particularly human rights related ones, the Assembly holds influential means and instruments. The resolutions and recommendations to governments are quite important in this context. In addition to special reports prepared by the members mandated, it elects the Secretary-General of the Council, as well as the judges of the ECrtHR.

So, although the universal rights and freedoms of the European citizens are -in principle- under the juridical guarantee of the European Court of Justice of the EU thanks to the 2009 Lisbon Treaty (Article 6/1) that acknowledged fundamental rights as “general principles of the Union’s law”, the EU has not developed a particular legal competence in human rights protection. Bearing also in mind the membership conditions (“Copenhagen Criteria”) for candidate states, this attitude of the EU might be seen as a bit confusing and even challenging. Yet this is mostly because the EU basically relies on the mechanism generated and developed by the Council of Europe (CoE).

The membership admission procedure of the CoE is not a very common one. The Treaty of London indicates that “any European State” which accepts “the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms” may be invited to become a Member of the CoE by the Committee of Ministers (Articles 3 and 4).

This “governmental” body sustains a close dialogue with the Parliamentary Assembly (PACE), which is generally seen as the “public face” and even the “motor” of the Council.

The European Commission for Democracy through Law, generally known as the Venice Commission as it meets in Venice, is an advisory body of the CoE on constitutional matters.

The admissibility decision used to be given unanimously by a three-judge committee up until 2010. This effectively meant that even in cases where only one of the three judges had seen some merits in it unlike the other two, the application was declared admissible. Thus the Court was ensuring everyone that even a slight probability of abuse was taken seriously and scrutinised.

However, Protocol 14 that entered into force in 2010 in the of reducing the workload of the Court has made a dramatic, and in fact controversial, change in the admissibility process. The applications are now being examined by a single-judge formation. “A single judge may declare inadmissible or strike out of the Court’s list of cases” and “the decision shall be final”.

Greece is the only member who withdrew from the CoE in 1969 before the Committee of Ministers voted for its suspension due to the military coup of 1967. It was readmitted in 1974 following the fall of the junta. Turkey was suspended from the Assembly in 1981 in response to the 1980 military coup and regained its right to vote in 1984 following the democratic elections of 1983. Russia is another member who was suspended from the Assembly from 2000 to 2001 due to its Chechnya policy

The CoE, which introduces itself as “the continent’s leading human rights organisation” was founded on 5 May 1949 by the Treaty of London that officially “constitute the Statute of the Council of Europe”.

The Secretary-General, who is elected for a term of five years by the Parliamentary Assembly, leads and represents the Council. S/he is expected to supervise the routine operation of the organisation. Yet the main decision and policy making body of the Council is the Committee of Ministers. It officially comprises the ministers of foreign affairs of the member States who are ordinarily represented by their accredited permanent diplomatic representatives based in Strasbourg.

This “governmental” body sustains a close dialogue with the Parliamentary Assembly (PACE), which is generally seen as the “public face” and even the “motor” of the Council. The Assembly consists of 324 members of parliament from the 47 member States representing some 800 million people.

The Congress of Local and Regional Authorities of Europe (also known as the Congress of the Council of Europe) is created in 1994 as a consultative body in line with increasing importance of regional and local participation and governance. All local and regional authorities in the member states are represented in the Congress.

Some of the basic rights protected by the ECHR and its Protocols are: - the right to life; - the right to a fair trial; - the right to respect for private and family life; - freedom of thought, conscience and religion; - freedom of expression; - the right to freedom of assembly and association; - the right to an effective remedy; - the right to the peaceful enjoyment of possessions; and - the right to vote and to stand for election.

The ECHR and its Protocols prohibits the following: - the right to vote and to stand for election. - death penalty; - torture and inhuman or degrading treatment or punishment; - slavery and forced labour.

Once registered, the application becomes subject to the admissibility decision. In other words, the merits of a case is not heard and judged straight after the application. For being declared admissible, the application must meet certain criteria. First of all, the application form must have been filled in accurately and meticulously

Furthermore, the case must be compatible with the requirements of ratione materiae, ratione temporis, ratione personae or ratione loci. That is to say, the subject matter of the application should be about a right protected under the Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must have been committed by the respondent State or must be attributable to it (ratione personae). So, the so-called victim status condition should also be met (Article 34, ECHR). Accordingly, the application must be lodged either directly by the victim or, in cases where the victim died or disappeared, by his/ her heirs or close relatives that are accepted by the Court to be indirect victims.

Aiming to solve its workload problem, the Court has developed a new procedure regarding “applications concerning similar issues, also known as ‘systemic issues’ – i.e. those that arise from non-conformity of domestic law with the Convention”. It examines “one or more applications of this kind, whilst its examination of a series of similar cases is adjourned (in other words, postponed).” Once a judgement is given in a so-called “pilot case”, the Court “calls on the Government concerned to bring the domestic legislation into line with the Convention and indicates the general measures to be taken. It will then proceed to dispose of the other similar cases.

In short, bearing in mind that all these “legal” decisions require a majority vote of two-thirds of the “political” representatives entitled to sit on the committee, going through such a complicated and time-consuming process, convincing two-thirds of the members to antagonise one another and securing an expected result is not that easy.

National courts will give decisions in line with the advices of the ECrtHR so that an individual application would not be necessary at all.

The Secretary-General, who is elected for a term of five years by the Parliamentary Assembly, leads and represents the Council. The correct answer is D